Orrin Hatch and Alexander Hamilton on advice and consent

posted at 12:31 pm on April 13, 2014 by Jazz Shaw

Senator Orrin Hatch has an editorial up this week in which he argues passionately in defense of a strong role for the Senate in the nomination process. In it, he focuses largely on two areas; the filibuster and the blue slip process. (The latter allows the Senators from the home state where a judicial nominee would serve to have a larger voice in the approval process.) It’s a fairly basic argument, in which he mourns the weakening of the filibuster and implores the leadership to not similarly gut the blue slip.

Weakening or eliminating the blue slip process would sweep aside the last remaining check on the president’s judicial appointment power.

Anyone serious about the Senate’s constitutional “advice and consent” role knows how disastrous such a move would be. Sen. Leahy warned in 2003 that the majority was trying to “rewrite Senate history in order to rubberstamp the federal judicial nominees of this White House and that this will cause long-term damage to the Senate and the courts.”

A confirmation process without filibuster or blue slip veto would weaken the collaboration between the president and the Senate, further politicize the confirmation process, and ultimately produce a more politicized federal judiciary.

I sincerely hope that the majority will not continue to sacrifice the good of the Senate and the good of the country simply to serve short-term political interests. I’m glad Chairman Leahy has preserved the blue slip process. It should stay that way.

Neither of these are actually constitutional questions, of course. Both the filibuster and the blue slip are simply rules of the Senate, and as such subject to change as the members decide. That comes straight from Article 1, Section 5.

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Beyond the rules of order, though, we still hear arguments – generally from the party controlling the White House – that all of this procedural nonsense is a big waste of time, well beyond the intention of the Founders, and that the President, having won the election, should be able to appoint who he wishes. I’ve been close to that school of thought at times, since there is some validity to it. The appointments would, logically, reflect the tastes of the man or woman who just won the national election, and the Senate should really just be a backstop against an absolutely corrupt choice.

But is that really what the Founders intended? Some parts of the constitution are rather murky, with very little historical context to clarify them for us. (For just one of many examples, what the heck did “high crimes and misdemeanors” mean at the time it was written? I submit that nobody alive today knows for sure what they meant.) But in the case of advice and consent, Alexander Hamilton left us a pretty good road map in Federalist 76. He starts out with an explanation which, at first glance, actually makes it sound like it was their intention for the President to do all of the picking because he would be more qualified to the task.

Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable. Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.

Hamilton supports this argument by saying that a single individual would not be subject to the distractions and internal fighting that any committee would be subject to, and as such could make appointment decisions with greater clarity of mind. So why not eliminate the role of the Senate entirely? On the one hand, he felt that such an advisory role was a prudent precaution, but he also demonstrated a complete lack of ability in prognostication when he claimed that it shouldn’t matter, because the Senate would hardly ever shoot down a Presidential nomination to begin with.

But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

Hamilton’s judgement about why it would mostly be foolish to oppose a nomination is a solid one. If you succeed in defeating the choice, you don’t get to pick the replacement, so you’ll probably get more of the same if not worse. Where he failed was in his prediction that this would prevent the Senate from often defeating them, which should come as hilarious news to any Democrat in 2005 or any Republican today.

But in the end, Hamilton registered the final word on why the Senate is not a rubber stamp. (A concern expressed by Hatch in his editorial above.)

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

And there you have it. Even if it is eventually slimmed down to nothing more than a requirement for rounding up 51 votes with no debate, the reason for the role of the Senate is right there for us. And unless you plan on amending the Constitution in direct defiance of what the Founders expressed, that’s how it’s going to stay.


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Isn’t it about time Hatch retired?

OmahaConservative on April 13, 2014 at 12:37 PM

What happens when the man in the White House isn’t “a man of abilities”? You know, like the current occupant?

GarandFan on April 13, 2014 at 12:38 PM

The US slope is slippery.

Slide fools, slide!!!

Relatively free people who relinquish their freedoms deserve to be shackled.

Armed ranchers are heroes!!!

Leftist trolls, the ranchers are not all old white guys. 1500 turtles were euthanized by the gov’t, you hypocrites. Plus, what about the trampled cows? PETA, you Gd’d imbeciles, where are you hiding? In the desert sand?

No, it’s not off topic. It’s all the same topic any more – our freedom and our liberties.

Trample on them, and deserve to live enslaved.

RT reported more on the Rancher Bundy case than the US so-called media. Yes, y’all know ho you are!!!

Schadenfreude on April 13, 2014 at 12:40 PM

Yes, y’all know ho who you are!!!…not that you’re not HOs too.

Schadenfreude on April 13, 2014 at 12:42 PM

Orrin Hatch: enabling Democrats and then whining about the consequences. /world’s tiniest violin

ElectricPhase on April 13, 2014 at 12:43 PM

How anyone can argue any side of this debate while ignoring the ramifications of the 17th Amendment is beyond me.

Senators should have their state’s interest at heart, not their next reelection bid.

ButterflyDragon on April 13, 2014 at 12:55 PM

Let’s face it, the system is broken beyond repair. Not that the system alone cannot be repaired, but there are just way too many stupid people who don’t care enough to fix it. Not only that, but there are too many people in power who are dedicated to destroy the system. Too bad. It was a nice experiment, but one that was destined to fail without a reliance on the Almighty as a guide. It just goes to show that man cannot rule himself.

HiJack on April 13, 2014 at 12:56 PM

Oh well, at least Hatch has the “consent” part down pat.

Joseph K on April 13, 2014 at 1:15 PM

Isn’t it about time Hatch retired?

OmahaConservative on April 13, 2014 at 12:37 PM

.
Wayyy . . . past time.

listens2glenn on April 13, 2014 at 1:16 PM

The Democrats will rue the day they made these changes and I sincerely hope the Republicans, after we get a Republican President with a House and Senate, are not quick to turn them back. I believe the Democrats have done the country great harm and plan on doing more, however it’s going to take Republicans having this power to lessen the damage by appointing conservatives to the courts quickly.

bflat879 on April 13, 2014 at 1:34 PM

I support the filibuster and it is sad to see it weakened. However, the blue slip system I would be glad to see die. The idea that a single senator can block a nominee even if the other 99 senators support him/her is stupid. It makes a farce out of advice and consent.

AngusMc on April 13, 2014 at 1:37 PM

What happens when the man in the White House isn’t “a man of abilities”? You know, like the current occupant?

GarandFan on April 13, 2014 at 12:38 PM

You vote him out.

Revenant on April 13, 2014 at 1:39 PM

I’ve been close to that school of thought at times, since there is some validity to it. The appointments would, logically, reflect the tastes of the man or woman who just won the national election, and the Senate should really just be a backstop against an absolutely corrupt choice.

How do you square that the mere existence of the “advice and consent” clause in the Constitution?

To accept that school of thought, which I’m glad to recognize that you apparently don’t…for now, you’d have completely ignore the presence of the clause. You’re explanation, however, is a frightening one, and one that is growing across the country. Its seems you agree that the President should be able to rule without regard to Constitution and the words within it.

Lets change the subject of your quote above, and see how it sounds:

I’ve been close to that school of thought at times, since there is some validity to it. The appointments interpretation of the 2nd Amendment would, logically, reflect the tastes of the man or woman who just won the national election, and the Senate should really just be a backstop against an absolutely corrupt choice.

Both quotes, yours and the one I edited, have to rely on the same legal theory that the Constitution is a guide, not the law of the land.

BobMbx on April 13, 2014 at 2:08 PM

Jazz, I’m sure the 200,000 Utah RINOs who continue to re-elect this senile POS are profoundly grateful that you have aired his latest annual contribution to the Senate, via an editorial that one of his millions of dollars of staffers wrote for him.

No one else in America — and certainly not the conservative coalition — give a fig what this ossified D.C. jerkoff has to say.

Jaibones on April 13, 2014 at 2:27 PM

Here is what I care about – that the Senate under the DemoNcrats are going to weaken the minority (i.e. Republicans) with the reform of the filibuster and now the blue slip and that … wait for it … these same Republicans will once back in the majority reform the Senate rules to … again, wait for it … strengthen the DemoNcrats.

How stupid are these people (Republicans)? This stupid. Watch them.

This is a battle. In a battle you don’t enable the enemy. You crush the enemy without mercy.

chuckh on April 13, 2014 at 2:58 PM

And unless you plan on amending the Constitution in direct defiance of what the Founders expressed, that’s how it’s going to stay.

John Paul Stevens was out there in the WaPo today with THAT editorial. Seems that Stevens thinks that the Second Amendment only applies at times when one is serving in the militia.

You’d think a liberal retired SCOTUS judge would have the time to do a little research and understand that the Second Amendment is based on the fear of government taking away firearms from families who relied on those weapons to protect themselves on the frontier and feed themselves. The British did just that and not just from militia members.

Happy Nomad on April 13, 2014 at 3:06 PM

Of course,the whole concept of the Senate was gutted when they introduced the 17th amendment, which changed the election process from State-legislatures voting to the populace voting. Apparently there a lot of state-level politics was resulting in a lot of vacancies. I wonder what would happen if we went back to that system?

RockinRickOwen on April 13, 2014 at 3:38 PM

The Democrats will rue the day they made these changes and I sincerely hope the Republicans, after we get a Republican President with a House and Senate, are not quick to turn them back.

The President himself agrees that we ought to exploit (security) loopholes before we fix ‘em.

I believe the Democrats have done the country great harm and plan on doing more, however it’s going to take Republicans having this power to lessen the damage by appointing conservatives to the courts quickly.

bflat879 on April 13, 2014 at 1:34 PM

Unfortunately, the GOP has a lousy track record on this, especially at the higher levels, but it’s still better than the Dems’.

AesopFan on April 13, 2014 at 6:54 PM

Of course,the whole concept of the Senate was gutted when they introduced the 17th amendment, which changed the election process from State-legislatures voting to the populace voting. Apparently there a lot of state-level politics was resulting in a lot of vacancies. I wonder what would happen if we went back to that system?

RockinRickOwen on April 13, 2014 at 3:38 PM

This is not the only place where we have chosen to implement the wrong “solution” to a problem, through not thoroughly discerning where the true problem lies.

AesopFan on April 13, 2014 at 6:55 PM

Another good reason for advice and consent has been eroded by the 17th Amendmennt: The original method of state legislatures selecting Senators meant that an Executive and/or Judicial Branch that tried to assert too much authority over the several states was unlikely, as the states themselves held a veto over every significant Presidential appointment.

The tradition of granting special deference to the Senators from the state(s) over which an appointee will have authority goes back to the idea of the Senate acting as a check on the power of the national government.

The Monster on April 13, 2014 at 7:03 PM

Yep – I was right.
There were better solutions than imposing a national system of popular election of the Senate.

Article I, Section 3: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

States always had the option of specifying HOW their legislatures would select Senators.

(Wikipedia) Under the original provisions of the Constitution, senators were elected by state legislatures; this was intended to prevent the federal government from indirectly absconding with the powers and funds of the states. However, over time various issues with these provisions, such as the risk of corruption and the potential for electoral deadlocks or a lack of representation should a seat become vacant, led to a campaign for reform.

Corruption was a minor issue, deadlocked states eventually straightened up, those without representation were only hurting themselves.

… By 1910, 31 state legislatures had passed motions calling for reform. By 1912, 239 political parties at both the state and national level had pledged some form of direct election, and 33 states had introduced the use of direct primaries.

Those that wanted popular election were always able to have them. There was no need to force everyone else to go along, and it was always possible to change the method again later if desired.

Reformers tabled constitutional amendments in 1828, 1829, and 1855, with the issues finally reaching a head during the 1890s and 1900s. Progressives, such as William Jennings Bryan, called for reform to the way senators were chosen.

Here’s what kicked things into high gear:

With a campaign for a state-led constitutional amendment gaining strength, and a fear that this could result in a “runaway convention”, the proposal to mandate direct elections for the Senate was finally introduced in the Congress.

It was that Progressive thing again.

AesopFan on April 13, 2014 at 7:15 PM

AesopFan on April 13, 2014 at 7:15 PM

I pretty much agree with what you said in your post and I’ll add my take on another aspect of Hatch and Hamilton. Why do we care what Alexander Hamilton had to say about any of this? He was overall a really bad guy.

We can begin assessing Hamilton by examining the 5 hour oration he gave at the beginning of the 1787 Philadelphia Convention. He called for the subjugation of the States. He noted that he would prefer to abolish the States completely but would tolerate their existence if they could be completely controlled by a new centralized national government. He advocated, therefore, that State governors be appointed by the National Government (NG) not elected by the people of their respective States and that the NG could veto any State laws deemed in conflict with the supremacy of the NG. He proposed a national bank modeled on the Bank of England owned and controlled by financial elites – in other words a plutocracy. (It must be noted that while Thomas Jefferson had a good command of economics – Hamilton’s economic education was limited to pamphlets given to him by British sympathizing mercantilists who wanted a national bank funding their crony (capitalist) pals.) The president under Hamilton’s plan would be elected for life and exercise more powers than any king could claim under the Devine Rights of Kings theory. In essence, Hamilton’s plan for the United States was a leviathan socialistic totalitarian government.

As the distinguished historian, Claude G. Bowers, has noted in his book, “Jefferson and Hamilton” about Hamilton’s proposed plan:
The plan was in direct contradiction of that which was adopted. There is nothing conjectural about the fact – the records are indisputable. We have the plan, the brilliant five-hour oration in its behalf, the brief from which he spoke. These have come down to us, not from his enemies, but from his partial biographers, his son the editor of his “Works,” and the report by Madison on the authenticity of which he himself passed. This plan provided for the election of a President for life, for Senators for life or during good behavior, and by electors with a property qualification; and for the crushing of the sovereignty of the States through the appointment by the President of Governors with a life tenure and the power to veto any act of State legislatures, even though passed unanimously. Not only was the President enabled under this plan to negate any law enacted, but he had the discretionary power to enforce or ignore any law existing. Though, his President, serving for life was not called a king, he was armed with more arbitrary power than the King of England. His English eulogist does not overstate when he says that “what he [Hamilton] had in mind was the British Constitution as George III had tried hard to make it,” and failed because the English people would not tolerate it. ……………. Hamilton noted “We should be rescued from democracy.” And as to the republican form of government- “Republics are liable to corruption and intrigue,” and since “a republican government does not limit a vigorous execution, it is therefore bad.”

Just what our Founders, who prevailed, wanted – a government tied down by the shackles of our Constitution so that its harm to “We the People” would be minimized.

When the votes of June 1787 at the Philadelphia Convention went against Hamilton, he stormed home to New York like a petulant baby. Later when Jay and Madison would prevail on Hamilton to return, he would come back in the last weeks to sign the Constitution he did not agree with on September 17th, 1787. Realizing that things like the four “sweeping clauses” allowed its meaning to be manipulated he would agree to pen his share of the “Federalist Papers” (FP) with the purpose of getting it ratified and then changing it. Much of his FP rhetoric was inconsistent – especially on major ideas like sovereignty.

Once installed as the Treasury Secretary, Hamilton would proceed to trash our Constitution for the remainder of his career in government. In fact, he was in bitter disagreement with our Constitution as ratified. And he confided to friends (especially influential ones like his fellow cofounder (1784) of the Bank of New York, Isaac Roosevelt, great grandfather of Franklin Roosevelt) that nothing short of a civil war would be sufficient to force the consolidation he wanted on the resisting people of the United States. We know that Hamilton entertained such thoughts, not because of any accusation from his political enemies, but by the acknowledgement of one of his most admiring political associates, Gouverneur Morris of Pennsylvania, his strong and loyal ally at the 1787 Philadelphia Convention.

In a letter written to Governor Aaron Ogden in December of 1804, Morris stated:
“Our poor friend Hamilton bestrode his hobby [to subvert the Constitution and establish a consolidated government] to the great annoyance of his friends and not without injury to himself. More a theoretic than a practical man, he was not sufficiently convinced that a system may be good in itself and bad in relation to particular circumstances. He well knew that his favorite was inadmissible unless as a result of civil war, and I suppose that his belief in what he called the approaching crisis arose from a conviction that the kind of government most suitable, in his opinion, to this extensive country, could be established in no other way.”
See; “Inquiry into the Origin and Course of Political Parties in the United States,” Martin Van Buren, Augustus M. Kelly Publishers, New York, 1867.

IMHO, anyway, informative reads on Hamilton’s corrosive policies and politics and the financial underpinning of our Founding can be found in; “Hamilton’s Curse: How Jefferson’s Arch Enemy Betrayed the American Revolution–and What It Means for Americans Today,” (2009) and “How Capitalism Saved America: The Untold History of Our Country, from the Pilgrims to the Present,” (2005) both by Thomas DiLorenzo.

Falcon46 on April 13, 2014 at 11:59 PM

We don’t care what Hamilton said, per se, but we do care what the Federalist Papers said, because they were written by the people who were trying to persuade the states to ratify the constitution; as such they indicate what the Framers and the states all understood to be the terms of the contract into which they were entering.

The Monster on April 14, 2014 at 8:35 AM

and might have the appearance of a reflection upon the judgment of the chief magistrate

Rather have that than his actual appointments create a negative reflection on the judgment of the chief magistrate. Like Clinton, Kerry, Giethner, Holder………

GWB on April 14, 2014 at 10:02 AM

We don’t care what Hamilton said, per se, but we do care what the Federalist Papers said, because they were written by the people who were trying to persuade the states to ratify the constitution; as such they indicate what the Framers and the states all understood to be the terms of the contract into which they were entering.

The Monster on April 14, 2014 at 8:35 AM

Yes, we do care what Hamilton said, that he was a strong nationalist and basically lied in the Fed Papers about his views on the new Constitution. John Jay was also a strong nationalist. Madison would flip-flop both ways over the next 50 years but his initial plan in 1787 was nationalist and not a Republic that recognize State sovereignty. That the FPs have become such a reference on the Constitution is a joke on us because much better references exist including Madison’s Notes on the Convention documenting what really happened (although changed later based upon John Taylor of Caroline’s writings) and the State Ratification debates, notes, texts etc. that still exist. Actually, the FPs were not widely read outside the New York City area at the time. In fact the vote in NY for ratification was close and only changed in favor at the last minute when NYC and Long Island threatened to succeed from the State of NY. Actually, papers by Brutus and others were more widely read.

Besides the above here are four books by men of the time that are better on the Constitution than the FPs.

1] St. George Tucker: View of the Constitution of the United States – St. George Tucker, View of the Constitution of the United States with Selected Writings [1803]

2] John Taylor of Caroline: whose writings caused Madison to change his notes: New Views of the Constitution of the United States (1823).

3] William Rawle: A View of the Constitution of the United States of America (1825, 1829).

4] Able Upshur: A Brief Enquiry into the True Nature and Character of Our Federal Government (1840).

Also available as reprinted books from Amazon, etc.

Falcon46 on April 14, 2014 at 4:12 PM